April 8, 2014

"Imprisonment Inertia and Public Attitudes Toward 'Truth in Sentencing'"

The title of this post is the title of this intriguing new paper by Michael O'Hear and Darren Wheelock now available via SSRN. here is the abstract:

In the space of a few short years in the 1990s, forty-two states adopted truth in sentencing (“TIS”) laws, which eliminated or greatly curtailed opportunities for criminal defendants to obtain parole release from prison. In the following decade, the pendulum seemingly swung in the opposite direction, with thirty-six states adopting new early release opportunities for prisoners. However, few of these initiatives had much impact, and prison populations continued to rise. The TIS ideal remained strong.

In the hope of developing a better understanding of these trends and of the prospects for more robust early release reforms in the future, the authors conducted public opinion surveys of hundreds of Wisconsin voters in 2012 and 2013 and report the results here. Notable findings include the following: (1) public support for TIS is strong and stable; (2) support for TIS results less from fear of crime than from a dislike of the parole decisionmaking process (which helps to explain why support for TIS has remained strong even as crime rates have fallen sharply); (3) support for TIS is not absolute and inflexible, but is balanced against such competing objectives as cost-reduction and offender rehabilitation, (4) a majority of the public would favor release as early as the halfway point in a prison sentence if public safety would not be threatened, and (5) a majority would prefer to have release decisions made by a commission of experts instead of a judge.

Comments

"a majority of the public would favor release as early as the halfway point in a prison sentence if public safety would not be threatened"

Sure, people say that, and as soon as a Willie Horton comes along they say otherwise. Here's the question that should be asked of the public: If a government official releases an offender before their sentence is done and that offender comes to ones house and kills ones mother--will you shrug your shoulders and say, "that's the breaks."

I doubt that 5% of the public would answer "yes"--but that is parole.

Posted by: Daniel | Apr 8, 2014 7:39:53 PM

Willie Hortonism is not a sound way to conduct public policy.

If our legislators and that huge apparat that goes along with it cannot make rational policy based on experience and logic and reason then our system of government has failed.

Anyone who supports Willie Hortonism has to be opposed at every opportunity by every decent citizen.

Posted by: Boffin | Apr 8, 2014 10:29:08 PM

"Truth in sentencing isn't the problem. Sentences that are way too long for non-violent offenders is the problem.

Posted by: Carmen Hernandez | Apr 9, 2014 12:42:34 AM

Boffin,

I agree that "Willie Hortonism" is no way to conduct public policy.

Do you also agree that "Roger Keith Colemanism" (Insert name of the flavor of the month the defense bar wants to claim is/was "innocent") is no way to conduct public policy?

Posted by: TarlsQtr | Apr 9, 2014 9:51:47 AM

TarIsQtr, I'd never heard of Coleman before, but looking him up I'd agree his case, too, was used by ambitious hacks for political gain at the expense of rule of law, respect for the courts, and proper administration of justice.

Posted by: Boffin | Apr 9, 2014 10:15:30 AM

At the state level, one reason that sentences are so long for non-violent offenders is the lack of truth in sentencing. Legislators know that the parole board will save them from the logical consequences of lengthy sentences for the non-violent offenses and, thus, they can vote to increase the potential sentences without having to find any new money to pay for new prisons.

In states that have juries recommend sentences, one of the first questions from the jury is always "how long will the person actually serve." Likewise, when I was a defense attorney and I conveyed the State's offer, the defendant always wanted to know how much of the proposed sentence he would have to serve.

The bottom line is that the only people in the system who happy with fictional sentences are legislators who like to appear tough on crime without having to make any hard choices about priorities. Corrections agencies are happy as long as they have a small percentage of "good time" to use as a management tool (see U.S. Bureau of Prisons which has gotten by with very limited good time and no parole for thirty years). Prosecutors, victims, defendants, defense attorneys, and judges are happy with knowing how much time a defendant will really serve (barring extreme misconduct in prison) at the time of plea/sentencing.

Posted by: tmm | Apr 9, 2014 10:35:03 AM

"The bottom line is that the only people in the system who happy with fictional sentences are legislators who like to appear tough on crime without having to make any hard choices about priorities."

I don't agree. What is unacknowledged is that the legislatures behave this way is because "we, the people" are two-faced. We accept the notion of risk until it happens to us--then we squall like a baby, contact our legislator, while the press pumps out ink by the barrel turning an unlucky break into a narrative or evil and malice against the public weal.

That's the poignancy in my initial post. It's like forgiveness. Forgiveness is easy to embrace in the abstract; actually turning the other cheek when the crowd is pointing and laughing at you and your face is streaked with blood is a different matter altogether. American culture has showed that its great at the abstract part and utter fails at the implementation part. Phrased differently, when faced with a conflict between adherence to a principle and benefiting from a selfish interest Americans act on self-interest.

So whenever I hear people bitch about legislators I always ask the question: to what extent is their behavior simply a reflection of our own? Perhaps legislators are more representative of the public will than many want to admit.

Posted by: Daniel | Apr 9, 2014 1:41:12 PM

Sadly. Daniel is right. Sentencing is a crude, primitive shortcut; nothing but an expedient. If we really wanted to correct the problem, one would make an individualized plan with respect to each offender and then match the components of that plan with the components of a program as closely as possible.

Posted by: Tom McGee | Apr 9, 2014 2:49:07 PM

Broken record time. Here it is again...

Split adjudicated sentences into two separate components: Punitive and rehabilitative. Each component is separately determined.

The punitive component addresses the concerns of the victim and the safety of the community, which is necessary to ensure that such actions are, indeed, punished.

But just as important - NOT more, but NOT less - is the need for a rehabilitative component be adjudicated separately to fit the need of how to best reintegrate the offender AFTER he serves his punitive phase. Without THIS component, then the offender will be far less inclined to invest in non-criminal activity.

The problem is we have a knee-jerk reaction between the lock'em'up types and the bleeding-heart-liberal types that can NEVER be resolved. While the dual-component model will not necessarily create instant kum-bi-yah sessions between the two factions, at least it addresses the concerns of both. How to approach this method, though, depends a lot on changing various constitutional methodologies which are too difficult to sort out at this time.

Posted by: Eric Knight | Apr 9, 2014 3:24:15 PM

Eric, I agree that the planning process should be broken into two parts, but I would describe them somewhat differently. First, offenders should be held accountable, The factual bases for doing so does not change, once established. Second, the risk that an offender will commit another crime should be controlled, and reduced if possible. Risk does change, because its factual bases changes.

A plan should be made as to each track. The most restrictive of the two would control at any given point in time. To make this work, judges should focus on track one, which is their area of expertise. Judges have no special expertise with respect to track two. Nor are they situated logistically in the ongoing "risk control/reduction" planning process to participate effectively.

Track two should be the joint responsibility of a risk control board and corrections agency. Parole is an old-fashioned idea. I say that as a long-time parole administrator. There is a built in conflict of interest between risk control and risk reduction that calls for new thinking; a different kind of decision-making mechanism.

Posted by: Tom McGee | Apr 9, 2014 5:23:14 PM

Tom:

Of course, a proper punishment for a recidivist should, in most cases, necessarily entail a significantly longer punitive sentence, with a correspondingly different rehabilitative program. I don't think we are different at all in that respect. Of course, each case is determined by the offender's history.

But the biggest problem is caused by finite sentencing schemes that encompass the entire sphere of time of jurisdictional control that must be split between punishment (incarceration, severe house arrest) and rehabilitation (parole, probation). Law and order types want as much incarceration as possible without indicating whether the ensuing shortened time the offender has once he reenters the community, if any, will allow him to assimilate.

In addition, with the arbitrary sequence of a finite sentencing scheme, one cannot realistically plan the logistics for either prison services and parole/probation services. Hence, when this happens, this is when you get the wild swings between the two factions and the UFC matches between the Bill Otis's and the Douglas Bermans. Ugh! Nobody wins, everyone loses.

Exhibit A: The federal system. It has been bastardized through all the years that they are now down to a non-parole system, so even long sentencing structures don't do anything for recidivism, which is usually higher for the same offense than state sentencing schemes that allow for more rehabilitative processes. For all its inefficiencies and problems, it's still better than the recidivism for federal incarceration offenders.

Finally, it's far easier to compare apples to apples (incarceration) along with comparing oranges to oranges (rehabilitation) when allocating resources. All the time wasted in litigating mass paroles, new sentencing schemes, etc. is then greatly reduced, though obviously never eliminated. But it's a start. The problem, though, lies with the 8th amendment interpretation. I would like to see a state start with this scheme, preferably California.

Posted by: Eric Knight | Apr 9, 2014 6:11:18 PM

Daniel, I disagree that voters want longer sentences for everything and that voters want fictional sentences. The problem is that on sentencing -- as with every other issue -- it is too easy to run a distorting ad that takes a look at only one part of the equation, and it is too difficult for somebody trying to balance competing interests to respond. If you started seeing ads reframing these votes as a vote to waste money, you would see a different set of legislative priorities.

Voters want real sentences -- with disagreement on what counts as the appropriate real sentence. Legislators are the ones that are happy with a Potemkin village of sentences as -- for them, appearances are reality.

Posted by: tmm | Apr 9, 2014 7:15:45 PM

Eric I think we are quite close in the way we see this problem. But I would differ as to your statement: "A proper punishment for a recidivist should, inmost cases, necessarily entail a significantly longer punitive sentence etc." I would argue that we punish people for what they did; i.e., commit a criminal offense. We control risk when there is a significant probability of recidivism. Incapacitation and rehabilitation are strategies for reducing risk in the future. These two tracks are based on different kinds of facts.

A sentence to prison is a very crude way to punish or control risk. The level of restraint imposed should be graduated as to both, with the most restrictive controlling at any given point in time.

I too would like to see California move in this direction. We need to think about this in a different way. No more idiosyncratic short cuts. Just make a two track plan in each case and proceed accordingly.

Posted by: Tom McGee | Apr 9, 2014 11:52:16 PM

"Daniel, I disagree that voters want longer sentences for everything and that voters want fictional sentences."

tmm. That wasn't my point. My point is that voters (at least on this topic) are fundamentally /irrational/. They don't know what they want or they want a host of incompossible things, it amounts to the same. Because of this irrationality a survey about what voters want tells one nothing about what they will do in the voting booth or what policies they will advocate for.

What voters want is the Big Rock Candy Mountain--and hell to any politician who dares to tell them no.

Posted by: Daniel | Apr 10, 2014 12:17:07 PM

My point is that voters (at least on this topic) are fundamentally /irrational/.--Daniel

My point is that politicians are descending to the level of Britain, Canada, and Europe, in ignoring the will of the electorate.